BELGIUM Law and Practice Contributed by: Michel Bonne, Hannelore Matthys and Virginie Lescot, Van Bael & Bellis
bidder would, as a result of the intended acqui - sition: • acquire “qualifying holding” ; or • increase an existing qualifying holding so that the proportion of the voting rights, or of the capital held, will cross the thresholds of 20%, 30% or 50%, or so that the target would become its subsidiary. The Law of 1 April 2007 on public takeovers (the “Public Takeover Law” ) also contains “put up or shut up” rule, allowing the FSMA to require a potential bidder to disclose its intention to launch a bid following market rumours. If no intention to launch a bid is announced, this person will be precluded from making a bid on the same target company for six months (save in exceptional cir - cumstances). 5. Negotiation Phase 5.1 Requirement to Disclose a Deal In the case of an acquisition of a private com - pany, there is no obligation to disclose the deal. As parties are frequently bound by non-disclo - sure agreements, the acquisition is often only announced as soon as signing or closing has taken place (assuming the parties wish to dis - close the deal). If a company intends to acquire a listed com - pany, the Public Takeover Law provides for sev - eral notification and publication requirements (see also 6.1 Length of Process for Acquisition/ Sale ). Companies that are submitting a pub - lic takeover bid must notify this to the FSMA, which will release a public announcement before the bidder does so. In view of this, bidders are encouraged to reach out to the FSMA early in the process to discuss the envisaged timeline. The
FSMA may also require the parties involved in a potential takeover bid to issue a press release. In the case of a public takeover bid, the Royal Decree of 27 April 2007 on public takeovers (the “Takeover Decree” ) requires that the same infor - mation be provided to all competing bidders. The bidder must also avoid receiving insider information. If the bidder nevertheless obtains insider infor - mation, it must disclose this in the prospectus. Regulation 596/2014 on market abuse defines insider information as “all information that relates, directly or indirectly, to particular instru- ments or issuers, is of a precise nature, has not been made public, and if it were made public, would be likely to have a significant effect on the price of those instruments” . Finally, there are some employee information and consultation obligations (see 2.5 Labour Law Regulations ). 5.2 Market Practice on Timing Market practice on the timing of disclosure does not typically differ from legal require - ments. In general, in private M&A transactions, the acquirer and the target often prepare a com - mon announcement and agree in advance on the content and timing of announcements. The most common market practices are to disclose the deal after signing or after closing (or both). However, the timing of the announcement may vary depending on the factual circumstances of the deal. The parties may sometimes consider it more useful or appropriate to communicate information of a potential forthcoming deal dur - ing the due diligence process or upon execution of a memorandum of understanding.
233 CHAMBERS.COM
Powered by FlippingBook